US v. Fitzgerald, No. 18-10116 (8-26-19)(Per curiam w/Watford & Hurwitz; dissent by Fletcher). This case concerns whether Nevada’s attempted battery with substantial bodily harm in violation of Nev. Rev. Stat. 200.481(2)(b) and 193.330 is a  “felony conviction” and a COV. The district found it was neither. The 9^th disagrees, and vacates and remands the sentence.  The 9^th finds the conviction is not a “wobbler”. Under US v. Johnson, 920 F.3d 628 (9^th Cir. 2019), the court looks to the designation given by the state and how it is treated. The state treats this conviction as a felony. It is also a COV due to the requirement of substantial bodily harm. Dissenting, Fletcher argues that bodily harm is overbroad, as a mere touching of third degree burn, for example, may have prolonged pain.

Tough loss after a spirited defense by AFPD Amy Cleary of Nevada FPD (Las Vegas).

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/08/26/18-10116.pdf